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Two long wars, chronic deficits, the financial crisis, the costly drug war, the growth of executive power under Presidents Bush and Obama, and the revelations about NSA abuses, have given rise to a growing libertarian movement in our country – with a greater focus on individual liberty and less government power. David Boaz’s newly released The Libertarian Mind is a comprehensive guide to the history, philosophy, and growth of the libertarian movement, with incisive analyses of today’s most pressing issues and policies.

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Gun Lawsuits Are No Business Of Congress

This article was first published in the Hartford Courant, June 11, 2002.

Legislation that would shield gun makers and sellers from liability lawsuits sailed through a House subcommittee on May 9. Pushed by the National Rifle Association, the bill had 225 co-sponsors. It would undermine pending litigation by nearly three dozen states and localities seeking hundreds of millions of dollars from the industry in connection with gun violence. Sens. Zell Miller, D-Ga., and Larry Craig, R-Id., have introduced a parallel bill in the Senate.

In a nutshell, the bills provide that gun manufacturers and distributors cannot be sued for damages from a gun’s illegal use.

These bills join a long list of statutes that some in Congress trumpet, oblivious to any constitutional restraints. Rep. Chris John, D-La., is correct when he warns that “frivolous lawsuits against gun manufacturers jeopardize a legitimate, legal business that is worth billions of dollars to our national economy.” But not every national problem is a federal problem. Quite simply, the power to control frivolous lawsuits belongs to the states.

When Congress’ authority to regulate interstate commerce is misused to restrict gun lawsuits, we should not be surprised that it will also be misused to restrict gun possession and ownership.

Bridgeport was one of the first cities to file suit against the gun industry, in January 1999. Mayor Joseph P. Ganim claimed, among other things, that gun violence depressed Bridgeport’s property values and tax base as companies exited. The city’s case was dismissed by the trial court in December 1999, and the dismissal was affirmed by the state Supreme Court the next year. The court held that victims of gun violence could sue, but not the city, which didn’t suffer direct losses.

With that precedent, it’s unlikely that other Connecticut cities or the state itself will file similar claims. Still, the question of whether such suits can be banned by the federal government under the Commerce Clause could have implications for municipal and state litigation against other industries on other grounds.

When Congress bothers episodically to pretend that it has constitutional authorization for its laws, the Commerce Clause is more often than not the cited rationale. Never mind that the large majority of federal statutes have nothing to do with commerce.

Originally, the purpose of the Commerce Clause was to secure the free flow of commerce among the states. That means Congress may act only when state regulations impede that purpose, or when it’s clear that uniform national regulations are essential. Even then, Congress’ power ought to extend no further than to regulate: (1) channels and vehicles of interstate commerce (such as waterways and airways); (2) discrimination by a state against out-of-state interests (like restrictions on imported goods); and (3) attempts by a state to exercise sovereignty beyond the state’s borders (for example, state rules governing national stock exchanges or telecommunications).

No matter how worthwhile an end may be, if there is no constitutional authority to pursue it, then the federal government must step aside and leave the matter to the states or to private parties. If Congress thinks it necessary to expand its powers, the Framers crafted an amendment process for that purpose. But too often, rather than follow that process, Congress has disregarded the limits set by the Constitution and gutted our front-line defense against overweening federal government.

After seven decades, the Rehnquist court has begun to rein in federal regulatory power asserted under the Commerce Clause. But the court’s edicts have left too much wiggle room for a Congress bent on enacting regulations that appease politically connected constituents. That’s not what federalism is all about.

Federalism is a system of dual sovereignty, with the states checking excessive power in the hands of the federal government and vice versa. Federalism limits the federal role to those few and defined powers enumerated in the Constitution. Nowhere in that document is there a federal power to set rules that control state lawsuits against gun makers. Those lawsuits are baseless and extortionate, but they are not the business of Congress.